Thursday, May 13, 2010

Three Reasons Why Elena Kagan Is No Thurgood Marshall

When President Obama introduced Elena Kagan to the public, he attempted to link her to the rich judicial and activist legacy of the late Thurgood Marshall. Obama said that Marshall, for whom Kagan clerked, taught the Supreme Court nominee to appreciate how the law impacts people:

But while Elena had a brilliant career in academia, her passion for the law is anything but academic. She's often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. I understand that he reciprocated by calling her "Shorty." (Laughter.) Nonetheless, she credits him with reminder her that, as she put it, behind law, there are stories -- stories of people's lives as shaped by the law, stories of people's lives as might be changed by the law.

Despite the rhetorical linkage, liberals should not draw any comfort from the effort to connect Kagan and Marshall. Here's why.

First, when President Lyndon Johnson nominated Marshall to the Supreme Court, the public did not have to guess how he would approach the Constitution or questions of inequality. Marshall had already demonstrated that he was a tireless advocate of equality. Marshall believed that the formal guarantee of "equal protection" meant nothing if society embraced, tolerated or mandated oppression. Kagan's stance on the most pressing issues -- particularly surrounding race and poverty -- remains a mystery. For that reason, she is no Thurgood Marshall.

Second, although Kagan's paper trail is light, some details are emerging. The little that exists regarding Kagan's views on race are not inspiring from a progressive perspective.

For example, Politicoreported yesterday that Kagan clashed with persons in the Clinton administration who pushed for him to have a freestanding commission to deal with the issue of race. Kagan dismissed the commission as a feel-good effort.

On the surface, Kagan's dismissal of the commission could support a positive racial agenda; perhaps she preferred substantive reforms. Kagan, however, also rejected substantive racial reforms. For example, Kagan (and others) advised Clinton to abandon his efforts to eliminate the 10:1 federal sentencing disparity for crack and powder cocaine. This disparity is not supported by science, and it has an extremely dramatic racial effect upon Latinos and African-Americans. Liberals and progressives have long condemned the disparity, and the Sentencing Commission recommended that Congress eliminate it. Kagan, however, said that Clinton should scale down the effort to get rid of the disparity due to the popularity of tough on crime policies.

Christopher Edley, the Dean of the University of California at Berkeley Law School, worked with Kagan at Harvard and in the Clinton administration. Edley had an important role in advising Clinton on issues of race and civil rights. Edley says that "[t]here were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed." Marshall, by contrast, was not centrist or center-right on issues of race.

Third, law clerks do not become the judges for whom they clerked. It is pretty bizarre to assume that clerks will share the specific ideology or constitutional approach of the judges that employed them. Law clerks approach the law from their own perspectives, shaped by their own experiences, goals and ideology. This applies to Kagan as well. Indeed, Kagan has said that she disagreed with Marshall on big issues.

Charles Ogletree, a professor at Harvard Law School sums up this point nicely: “It’s absurd to compare Elena Kagan’s judicial philosophy to Thurgood Marshall’s philosophy. . . .The reality is that Elena Kagan learned a lot from Justice Marshall, but she will not be overly influenced by Marshall or anyone else. She is her own person.”

Final TakeThe Marshall link is simply rhetorical gloss designed to make Kagan attractive to individuals who might doubt her liberal credentials. Substantively, the tie means nothing. Liberals should not conflate symbols with substance.

None of this means that Kagan is unqualified or that would not take liberal positions on issues of race. I look forward to hearing more about her.

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About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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